Abstract
In Bending the Rules: Procedural Politicking in the Bureaucracy, Rachel Augustine Potter examines how bureaucrats in the federal government use procedural tools to avoid political oversight from other political actors. The main argument of the book is that bureaucrats can control the degree of oversight by the President, Congress, and interest groups by employing three tools in the rulemaking process: writing, consultation, and timing. Writing as a tool suggests that agencies can effectively avoid oversight from their principals by changing the length and the readability of the rules. Consultation as a tool indicates that bureaucrats can decide the length of a commenting period to garner more support from aligned interest groups for a rule they propose, or they can time the commenting period to occur during the congressional recess to minimize oversight from members of Congress. Timing as a tool means that agencies can choose the timing of the publication of the final rule. The key assumption in the book is that bureaucrats “benefit from a successful rulemaking project and suffer setbacks from a failed one” (p. 64) so they manipulate procedures to avoid the setbacks to their proposed rules. Potter persuasively demonstrates how the three tools she identified are effective in achieving bureaucrats’ goals when agencies face unfavorable political conditions.
Rulemaking is a central feature of contemporary American government and the scope and impact of rulemaking on American life is substantively significant (Yackee, 2019). Still, the rulemaking process remains obscure to many political scientists, and the complicated process of rulemaking imposes barriers for a broader audience to understand the politics of rulemaking and its consequences. Potter does an excellent job of explaining the process of rulemaking in an accessible way in Chapter 2. She provides a brief history of rulemaking, describes details of the current rulemaking process, and identifies the relevant political actors—the President, Congress, and courts—and their tools in oversight of the rulemaking process. This allows anyone who is not familiar with the topic to easily understand the core steps and stakes involved in the rulemaking process.
Potter’s key contribution in this book is to expand our knowledge of the role of bureaucrats in the rulemaking process. Although agencies design the process of rulemaking, most of the research on rulemaking in political science has focused on other actors. As the author points out, conventional wisdom has treated procedures—a key tool that bureaucrats employ in the rulemaking process—as a “mechanism for political overseers to constrain what bureaucrats do” (p. 54). However, Potter makes a strong case that bureaucrats have much discretion in implementing and managing these procedures. By constructing the Regulatory Proposals Dataset, which includes approximately 11,000 proposed rules over the period between 1995 and 2014, Potter provides a detailed analysis and evidence to support her argument that agencies actively engage in “procedural politiking.”
Among the tools the author explores, bureaucrats’ power over choosing to expand or restrict participation opportunities is noteworthy. As the author writes, “Public participation in rulemaking is the hallmark of notice-and-comment” (p. 74) and scholars have paid much attention to the question of who participates and whether the public participation process increases or decreases inequality in political participation (e.g., Yackee & Yackee, 2006). In contrast, little attention has been paid to whether agencies vary in terms of designing public consultation procedures. Because the nine-page Administrative Procedure Act of 1946 does not specify how public participation should be designed in rulemaking, agencies can decide the length and timing of comment periods.
Potter’s theory that bureaucrats strategically use consultation periods raises an important issue in studies of group influence in the rulemaking process. If agencies design the length and timing of public consultation to draw more comments from interest groups who support the proposed rule when the agencies’ preference is not aligned with the President and/or Congress, this implies that the exercise of estimating the influence of groups in the notice-and-comments periods may be significantly biased. Given that agencies could choose who participates and affect the balance of participation between supporting and opposing interest groups, scholars need to take the design of the rulemaking process into account when they examine the influence of interest groups in the public commenting process. Potter’s analysis on recess commenting is convincing evidence that agencies can use procedures to avoid congressional oversight. She shows that as congressional opposition increases, agencies are more likely to time public comment periods during congressional recesses when members of Congress focus on activities in their home districts. Ban and You (2019) show that individual members of Congress are also active participants in submitting comments on the proposed rule and they often do this on behalf of certain interest groups. By timing the public consultation period when members are busy, Potter’s analysis suggests that agencies can also change the degree of influence different groups exert in the rulemaking process.
All told, Potter’s work contributes to the literature on bureaucracy and rulemaking in numerous ways. Yet, there are some shortcomings and several issues that warrant further discussion. First, the key element of the theory is that bureaucrats have complete information about the preference of relevant actors and “agencies anticipate how interest groups will react to their rules and craft their procedural choices in response to this expectation” (p. 102). Although identifying the preference of the President and Congress on a proposed rule may not be challenging for agencies, predicting the preferences and the reactions of interest groups on the proposed rule is not as straightforward. As the author points out, there is significant variation in times until rules are finalization and “nearly 10 percent of the rules in the Regulatory Proposal Dataset took longer than three years” (p. 137) to finalize. During the prolonged period of rulemaking, there could be changes in the dynamics of interest groups, and it is challenging for agencies to accurately predict which group will actively respond to the proposed rules.
In a related point, the author uses campaign contributions from each industry to measure interest groups’ predisposition toward specific rules. After creating a database of an industry’s political spending in the agency’s issue area, the author calculates the balance of party spending and compares that with the agency’s ideology measure. In doing so, the author assumes that campaign contribution patterns of interest groups are a good proxy for the groups’ predisposition on the proposed rules from certain agencies. I raise a caution about this assumption. As You (2017) illustrates, firms from the same finance sector that strongly opposed the passage of Dodd–Frank fought against each other on the specific rules that the Security and Exchange Commission (SEC) proposed regarding derivatives trading. This suggests that even interest groups within the same industry could have starkly different positions on a proposed rule. Although I understand the challenges in measuring the predispositions of relevant interest groups on proposed rules, we need further discussion on the shortcomings of the measures that the author used and alternative measures for future research.
Second, Potter assumes that all types of bureaucrats—zealots, climbers, professionals, and slackers—want to finalize the proposed rule. Although that may be the case, it is not clear whether the ultimate goal of bureaucrats’ procedural politiking is to avoid oversight from their principals so that their agencies can achieve autonomy. It is possible that bureaucrats’ career concerns could drive the empirical regularities that the author presents in the book. There is a significant flow from federal agencies to private firms and the lobbying industry and the presence of outside options for bureaucrats can influence their behaviors in rulemaking. For example, deHann, Kedia, Koh, and Rajgopal (2015) show that SEC lawyers became more aggressive in terms of their regulatory activities to showcase their enforcement expertise before they moved to private sectors. Similarly, bureaucrats can make the contents of the rules less accessible, thereby increasing their market value of their knowledge about the rules. Also, it is possible that bureaucrats time the finalization of the proposed rule to maximize the demand for their experience and knowledge in the private sectors. If having unaligned political principals facilitates the exit of bureaucrats to the private sector, these career concern incentives may be the main driver of bureaucrats’ strategic behaviors in the rulemaking process. Potter briefly discusses the role bureaucrats’ career concerns in Chapter 3, but I think it requires a more complete exploration.
Overall, this book raises an important question regarding the degree of discretion and autonomy that bureaucrats exercise under political constraints caused by ideological differences with other political actors. This is particularly crucial in the era of political polarization when lawmaking activities in terms of the number of bills enacted has been slowed down. When rulemaking is increasingly important for policymaking, it is crucial to understand how the rulemaking process works and what factors influence bureaucrats’ behaviors in that process. Despite the dominance of rulemaking in contemporary American public-policy making, as the author notes, there have been few studies of the implication of increased congressional polarization in the context of the bureaucracy (p. 187). Potter’s book directly tackles this shortcoming in a rigorous fashion. Bending the Rules will provide numerous insights and the future research agenda to scholars who are interested in bureaucratic politics, rulemaking and interest groups, and public policy.
Potter concludes the book by raising some normative concerns regarding the active roles of bureaucrats in policymaking. An outsized role for bureaucrats in policymaking could be problematic in two aspects. First, bureaucrats are not elected so there is a concern about accountability. Second, the policy changes that agencies make are gradual, therefore they may lack a holistic approach to policy problems. At the same time, Potter presents descriptive statistics that suggest bureaucrats are more diverse as well as more similar to the general public in terms of their ideological predispositions and socioeconomic backgrounds than members of Congress. Bureaucrats also tend to possess more expertise on specific issues than legislators. This implies that there may be trade-offs in policymaking by legislators versus bureaucrats in terms of accountability, scope of the change, and quality of the policy. Given those trade-offs, a fruitful direction for future research would be to examine the division of labor between legislators and bureaucrats in policymaking by issue areas.
